Friday, August 1, 2008

The proceedings on Thursday began with Judge Wu hearing more arguments from both the prosecution and the defense on whether or not entrapment by estoppel would be allowed as a legitimate defense. Wu eventually ruled that the phone calls to the DEA would be sufficient. Whether or not the defense would hold would be a jury question, not a legal question. Wu did stipulate though, that because Lynch only asked on the fourth phone call about opening a dispensary, that entrapment by estoppel would not be applicable for the charge of distributing marijuana to minors since Lynch never inquired about that on the call.

Kowal, the male prosecutor, whined that this was inconsistent. Why would it cover all the charges except for distribution to minors, when cultivation of plants was also a separate charge from running a dispensary? This inconsistency posed problems for the defense as well.

Wu never justified his decision rationally. If the DEA had informed Lynch on that fourth phone call that it was "up to the cities and counties to decide how they would handle the matter," then city or county regulations regarding distribution to minors in dispensaries should have been just as valid as city or county rules pertaining to plant cultivation, which Wu said would be covered by the entrapment defense, if successful. After much deliberation, the defense was forced to accept Wu's blatantly flawed logic and unfortunate inconsistency.

Cohen continued his examination of Lynch. They reviewed how Lynch secured a lease in Atascadero, but then moved his business to Morro Bay after a year. Lynch obtained business licenses from the city of Morro Bay, and complied with all rules and conditions from the city of Morro Bay. Lynch had hired a security guard to stand at the entrance from the street preventing anyone who didn't have the proper papers, from entering. To even enter the store, a California driver's license was required. Lynch didn't cultivate any plants in the store until he had a use permit from the city. Janice Peters, the mayor was aware of the dispensary. One day the Morro Bay police chief visited the store, and asked Lynch to file an emergency contact information document, which Lynch promptly did.

In the afternoon, the defense wanted to reschedule so that the mayor of Morro Bay could testify as to her endorsement of Lynch and his operation. She wouldn't be available on Friday, but Wu decided that her testimony was not yet relevant. She had to leave though, to take care of business in San Luis Obispo, so she will not be available to testify even if Wu eventually decides that a testimony from her would be relevant.

Cohen continued the examination. Lynch did a background check on all the employees, including Abraham Baxter, an employee from whom undercover deputies purchased marijuana in a Big 5 parking lot several miles away from the dispensary. The prosecution had earlier been trying to link Baxter to Lynch for conspiracy. Lynch made all his employees sign employee agreement forms that precluded them from selling marijuana outside of the store. He even fired a number of employees that stole marijuana from the store. Clearly, it was never his intention to break any law.

Lynch explained that a white bag he carried out of the store was filled with empty Coke cans he was taking home to recycle. Earlier, a sheriff's deputy had implied that this bag had had marijuana. Lynch also explained an incident from a deputy's earlier testimony, when an employee exited the store, smelled a small bag, and handed it to someone on the sidewalk. Lynch explained that the bag had frozen fish in it, and it smelled. Lynch warned this employee that this action might be misconstrued considering what business that they were in, and told the employee not to do something like that again.

The cross examination began. David P. Kowal revealed that he suffers from serious anger-management issues as he yelled furiously at Lynch from the podium, often brazenly interrupting Lynch's answers. Kowal started to pace back and forth, barking loudly after Lynch's soft-spoken answers, which he seemed to ignore, since he screamed the same questions again and again. The court reporter conveniently interrupted to report that he needed five minutes to maintain his machine. This gave Lynch a much-needed respite from Kowal's abrasive onslaught.

Hopefully Kowal did not use this break to visit the women's restroom. He had entered the women's restroom earlier in the day, and then stepped out moments later in apparent shame. This had occurred after he had just flashed an attention-craving smirk when he strutted past a handful of Lynch's supporters in the hallway.

In the cross-examination, Kowal dwelled on the phone calls to the DEA. Although Kowal emphasized that Lynch had not received any name, position, or title from the voices on the other end of each line, the jury was probably put off by Kowal's belligerence. Some, if not all of the jurors will see how determined Lynch was to follow the law, having called four phone numbers. It's also worth pointing out that on the fourth phone call, the female voice answered the phone by saying, "Marijuana Task Force." When Lynch asked his question, she asked how he got the phone number, which clearly reveals that phone number was an internal line of the DEA, not some receptionist. Reasonable jurors will agree that the second voice who instructed Lynch must have been an authority about the legality of running a dispensary, or otherwise, Lynch wouldn't have been referred to him.

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